In United States v. Sawyer, No. 15-2276, the Second Circuit (Jacobs, Pooler, Crawford) vacated and remanded for resentencing a case involving a conviction for possession of child pornography. The decision rested on a finding that the 30-year sentence was substantively unreasonable, yet was made by unpublished summary order. This is the third time in the past several months that a child pornography sentence has been vacated and remanded (see our posts on United States v. Bennett and United States v. Brown), but while the prior two decisions rested on procedural grounds as a means of sending the case back to the district court for a second look, Sawyer relies solely on substantive unreasonableness. It is very rare for the Second Circuit to reverse a within-the-range sentence for substantive unreasonableness.

Note: On December 6, the Brown Court withdrew its original opinion and issued a new opinion affirming the sentence in that case as procedurally and substantively reasonable.

Sawyer pled guilty to two charges of production of child pornography, based on taking 15-20 photographs for his own use, and one charge of receipt of child pornography, based on viewing 87 images on his cell phone. He was sentenced to two 15-year sentences on the production charges, running consecutively, and a 5-year sentence on the receipt charge, running concurrently. The Court’s holding that the 30-year sentence was substantively unreasonable rested on two grounds: the sentencing court’s over-reliance on a perceived need to protect the public, and failure to give enough weight to the defendant’s personal characteristics.

First, citing its earlier decision in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), the Court held that the need for public protection could not justify a 30-year sentence where there was a lack of evidence that the defendant was likely to actually assault a child. This is supported by the fact that a defendant who was convicted of actually having sex with minors would face a significantly more lenient sentence under the Guidelines than Sawyer received here. The Court held that where the defendant “shared no images with others, possessed fewer images than defendants in typical cases, and did not have sex with the victims or any other underage persons,” the need to protect the public did not justify such a long sentence. The Court observed in a footnote that there was a statement in the presentence report that suggested that the defendant engaged in the sexual assault of a subject of his pornography, and that the district court adopted the findings of the PSR. However, the Court gave little weight to this allegation because it was denied by the defendant and the district court did not base the sentence on this fact.

Second the Court held that the sentencing court failed to adequately take into account another Section 3553(a) factor, the history and characteristics of the defendant. The district court found that Sawyer suffered a “horrid, nightmarish” childhood where he was repeatedly subjected to physical and sexual abuse and exposed to drugs and alcohol. An expert psychologist opined that Sawyer’s childhood made it difficult for him to form normal relationships and that childhood abuse was a cause of his activities as an adult. Combined with “scant criminal history,” this background “justifies not just a departure from the Guidelines, but a significant one indeed.”

While remanding on substantive grounds, the Court declined to find procedural unreasonableness. It found no procedural error in refusing to allow the psychologist to testify at the sentencing hearing because the district court credited the “very thorough and very comprehensive” written report opining that Sawyer’s childhood abuse was a cause of his activities as an adult. The district court reasonably refused to hear proffered expert testimony that Sawyer would not have committed the instant offenses if he had received counseling as a child, concluding that it would be highly speculative. Finally, there was no error in the district court’s failure to expressly address Sawyer’s argument that the Guidelines were not based on empirical evidence given the presumption that the sentencing judge considered all arguments properly presented to her.

The standard for reversing a sentence based on substantive reasonableness is high. Substantive reasonableness is reviewed on a deferential “abuse-of-discretion” standard. Gall v. United States, 552 U.S. 38, 51 (2007). The Second Circuit has held that reversal based on substantive reasonableness will occur “only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.” United States v. Rigas, 583 F.3d 108, 122 (2d Cir. 2009). Moreover, the Court has long acknowledged that “in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2005).

Here, despite these legal rules that lead to the affirmance of nearly all within-the-range sentences, the Court was very troubled by the length of sentence given the defendant’s difficult childhood and the shorter sentences imposed in other child exploitation cases. As this decision is unpublished, it lacks precedential effect and does bind neither future panels of the Circuit nor lower courts. See Local Rule 32.1.1. It is not clear why the panel elected to leave this unpublished. Perhaps it viewed the ruling as based on the settled precedent of Dorvee. At any rate, it remains to be seen whether it reflects a new, burgeoning trend of a more rigorous level of substantive reasonableness review, or whether it is a result based on a particular panel’s assessment of the unique facts of this case.